Reject Letters And Things That Go Bump In The Night

It is a good idea to write a reject letter to a potential client when you turn down a case. A good number of lawyers tell the receipent of the letter something about the statute of limitations on the particular claim in such a letter. This decision reminds us why we need to be careful when we do so.

A Chicago law firm rejected a wrongful death claim and advised the potential client that the statute of limitations was two years. In fact, it was one. The letter concluded as follows: “Therefore, should you decide to pursue this matter further, we respectfully suggest that you contact an attorney of your choice immediately so that the Estate’s legal rights may be fully protected. Do not delay.”

The receipent sought the advice of another attorney within the applicable one-year period; that attorney had one meeting with the client and then rejected the case. His reject letter said this: “Please be advised that all lawsuits are limited by a period prescribed by statute. You need to have your daughter’s case filed within the applicable limitations period. If you do not do so, you may lose whatever rights you have to recovery.”

Several months in the one-year statute remained at that point. After the one-year statute had expired but well before the two-year period began to run a third attorney was asked to look at the case; this attorney advised that the statute of limitations had expired.

The first law firm was sued and argued that their duty to the client ended when their representation came to an end within the statute of limitations and also that the acts of the second attorney broke the causative chain as a matter of law. They also argued that the plaintiff did not reasonably rely on their advice.

The Illinois Court of Appeals reversed summary judgment in favor of the first firm. The court held that case law “do[es] not suggest that an attorney who declines to accept a case after a preliminary exploratory meeting with a prospective client assumes responsibility and corresponding liability for the preceding attorney’s mistakes.” The defendants argued that the second attorney had the duty to tell the plaintiff the amount of time that was left before the statute expired. The court disagreed, saying “[w]e do not find any Illinois authority which would impose that burden upon an attorney on the strength of an exploratory meeting which did not result in an acceptance of the case. Nor can such cursory involvement suffice to be characterized as a superceding cause so as to relieve the original attorney of liability for his mistakes and shift it to the shoulders of the second attorney.”

With regard to the argument that the plaintiff did not reasonably rely on the defendants’ advice, the court held that the reliance was not unreasonable as a matter of law. The case was remanded for trial.

So, do we continue to write reject letters or not? And it we do, how much information do we give on the statute of limitations? The second lawyer did not give a specific date and it appears he is off the hook. The first lawyers (now the defendants) gave a deadline but the wrong deadline and now will face a jury.

It seems to me that we should still write reject letters and, if we choose to give statute of limitation advice, we should use the most conservative view of the statute, and say that that is what we are doing.

I read this opinion the day after I learned that our malpractice rates were going up about 200% in one year – with no claims history. I knew there was some reason I woke up at 2:54 A.M. and could not get back to sleep.